The Law Firm of Piacentile, Stefanowski & Malherbe LLP

Common Law and Statutory Protections for Whistleblowers Facing Retaliation

Whistleblowers play an important role in society by helping expose wrongdoings and bring them to light for all the public to see. Common law has long recognized the importance of whistleblowers and provided them with protections against retaliation. English common law precedent held that an employee who reported wrongdoing could not be retaliated against by their employer. This principle was codified in the Whistleblower Protection Act of 1989, which provides protection for federal employees who report wrongdoing. Early American courts also recognized the importance of protecting whistleblowers. In one famous case, a court held that a state could not punish a person for disclosing fraud because it would "chill" people from coming forward with information about potential wrongdoing.

Today, whistleblowers still have common law protections against retaliation. These protections primarily come from the courts, which have held that employers generally cannot retaliate against employees who report wrongdoing. Common law also provides some protection for whistleblowers who are not employees, such as contractors and business associates. If you are a whistleblower, you should know that common law provides you with important protections against retaliation. As mentioned before, one of the main laws that protect whistleblowers is the aptly named "Whistleblower Protection Act", which was enacted in 1989. This law was designed to expand the rights and protections initially addressed by the Civil Reform Act of 1978. The act intended to "strengthen and improve protection for the rights of federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government". It also separated the Office of Special Counsel ("OSC") from the Merit Systems Protection Board ("MSPB"), and it empowered the OSC to represent whistleblowers in retaliation matters.

Another very old law that happens to be the most common and prolific one related to whistleblowers, as one which is also the oldest, is the False Claims Act ("FCA"), a Civil War-era act, enacted in 1863 by Congress, who had the intention of tackling the problems caused by suppliers to the Union Army defrauding the Union. The FCA contains a provision called a Qui Tam, which allows private persons with information not publicly available to file suits for violations of the FCA on behalf of the government. This means that when you file the suit, you are representing the government and not yourself. This suit is usually filed under seal, to protect the whistleblower from retaliation.

Besides being filed under seal, the FCA also contains anti-retaliation provisions like the one commonly known as an "H Claim". The H claim provision of the FCA states that "any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the false claims act]." It also directly offers relief for those that suffer retaliation by requiring "reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees."

There are many other federal and state laws that contain anti-retaliation provisions for whistleblowers. The Sarbanes-Oxley Act, for example, contains a provision that protects employees of public companies who report fraud or misconduct. Whistleblowers also have protections under the National Labor Relations Act, which prohibits employers from retaliating against employees who engage in protected activity, such as reporting safety concerns.

If you are a whistleblower, it is important to know that you have numerous legal protections against retaliation. These protections come from a variety of sources, including federal and state laws, common law principles, and court decisions. If you suffer retaliation because you reported wrongdoing, you should seek legal advice to determine what remedies may be available to you. Common law protections for whistleblowers are important because they help to ensure that people can come forward with information about wrongdoing without fear of reprisal. These protections encourage people to speak up when they see something wrong, which is essential for maintaining a just and civil society. Whistleblowers play a vital role in our society, and common law provides them with important protections.

If you have information about wrongdoing, you should consider coming forward and speak to a whistleblower lawyer for a confidential consultation. Common law and numerous potentially applicable statutes provide you with important protections against retaliation, and you can help to make our society a better place by exposing wrongdoings.